At around the same time, defendant met B through an Internet dating
service and they began an affair. In an e-mail to her, he confided that he wished that his
wife could be killed in what would look like an accident with another car. He told B that,
in his vision of the event, his wife would be a passenger in his car and B would be driving
the other vehicle. B did not take defendant's musings to be in earnest, and she did not
report them to police.

As the end of his relationship with B was approaching, defendant met
Killingsworth in a public Internet chat room. Soon, they began "chatting" through private
instant messaging. Transcripts of several of their chats, saved by Killingsworth after she
became alarmed at some of defendant's ideas, were exhibits at trial. They disclose a
steady progression from the innocuously romantic to the perverse and deranged. Early
messages included relatively harmless fantasies--"our skin together, melding into one," "a
walk along the river, a picnic in a meadow or out in the warm desert," and such. Slowly,
defendant began to introduce more menacing topics into the conversations. He
mentioned, "[T]his will sound really bad, the one other thought I had since meeting you is
that my wife would just drop dead literal[l]y. She is going to cause some trouble right
now." Again, after Killingsworth told him that she was "there" for defendant's needs, he
told her, "I have a need but it['s] just so far fetched and bad." He elaborated, referring to
his wife: "[I] just wish someone would break into the house and take care of her." In
response, Killingsworth told defendant, "I'm expert with a gun," and added, "[I] could
drop her at 600 yards." After some time, defendant's daughter was added as an additional
victim--in defendant's terms, a "bonus." He discussed various forms of murder, including
graphically described tortures.

Throughout the on-line communication, defendant frequently asserted that
the talk about killing his wife and daughter was just "a dream" and that he was "just
kidding." The following dialogue illustrates that practice and may explain its purpose:

"[Killingsworth]: You want me to put an end to things?

"[Defendant]: I would be silly to say yes to something like that.

"[Killingsworth]: Why?

"[Defendant]: Because, that would be soliciting and illegal and this
system isn['t] private.

"[Killingsworth]: I see. You['re] right. We should just talk on the
phone about it I guess. Are you there?

"[Defendant]: Since we are just kidding, we can talk about it
anywhere. Kidding is wrong, since we are dreaming."

At some point thereafter, defendant and Killingsworth had at least one
telephone conversation. The parties' recollections of the conversation or conversations
differ; the trial court found that Killingsworth's rendition was credible, and we defer to
that well-documented and thoroughly explained finding.

Killingsworth did not recite the precise words exchanged by telephone;
rather, she reported that the call or calls focused on the subjects broached in the instant
messaging dialogues but had "a little more detail." In particular, she testified that
defendant complained that he wanted to leave his marriage but feared that his wife would
take all his money in a divorce; therefore, he concluded that he could escape his marriage
only by having his wife killed. He discussed the possibility of torturing her, but decided
that shooting her to death would suffice. He described his house plan and mentioned that
the sliding glass doorway to his wife's bedroom was not lockable. Further, he stated that
it would be easy to continue down a hallway to shoot his daughter. Finally, he asked
Killingsworth to visit him on a date when his wife would be out of town so that she could
see the house and they could finalize a plan. A quid pro quo was discussed; once the plan
was completed, defendant stated, Killingsworth would "never want for anything."

None of this discussion by telephone was qualified by references to dreams
or fantasies; Killingsworth took defendant to be serious. For that reason, she informed
defendant that she was going to turn over to the Bend police a transcript that she had
printed of their e-mail conversations. He offered her $10,000 to refrain from that action,
but she did it anyway. Defendant was subsequently arrested and tried before a judge. He
was found guilty on six counts of the indictment: count 1, attempted aggravated murder
of his wife by payment to another to commit the murder, ORS 161.405 and ORS
163.095(1)(b); count 2, attempted aggravated murder of his daughter by payment to
another to commit the murder, id.; count 3, attempted aggravated murder, multiple
victims, ORS 161.405 and ORS 163.095(1)(d); count 4, attempted murder of his
daughter, ORS 161.405 and ORS 163.115; count 5, solicitation to commit aggravated
murder (multiple victims), ORS 161.435 and ORS 163.095(1)(d); count 6, solicitation to
commit murder, ORS 161.435 and ORS 163.115. In order to comply with ORS
161.485(2) (multiple convictions barred in inchoate crimes), the trial court ruled that,
"Counts 3 and 5 merge into Counts 1 or 2 and Counts 4 and 6 also merge into Counts 1 or
2, resulting in only two convictions and sentences."

We begin with defendant's argument that the trial court erred in denying his
motion for a judgment of acquittal on the charges of solicitation under ORS 161.435.
That statute provides, in part:

"(1) A person commits the crime of solicitation if with the intent of
causing another to engage in specific conduct constituting a crime
punishable as a felony or as a Class A misdemeanor or an attempt to
commit such felony or Class A misdemeanor the person commands or
solicits such other person to engage in that conduct."

According to defendant, the statute imposes three requirements that the state must meet in
order to obtain a conviction and, he argues, it met none of them: first, it failed to adduce
evidence revealing the actual text of his written or oral statements requesting
Killingsworth to kill his wife and daughter; second, it failed to demonstrate that the
request urged specific conduct pursuant to a concrete plan; and third, it failed to adduce
evidence that defendant offered Killingsworth a quid pro quo for killing his wife and
daughter.

Defendant's argument that the state must establish a "specific," concrete
plan requires more discussion. The statute itself specifies that the mens rea of solicitation
is "the intent of causing another to engage in specific conduct constituting a crime * * *."
ORS 161.435. Further, the legislative history indicates that the "specific conduct"
element served to ensure that enforcement of the statute did not violate free speech
guarantees: The phrase "is designed to allay some of the problems with respect to
encroachment on traditional free speech concepts" and to prevent "legitimate agitation of
an extreme or inflammatory nature from being misinterpreted as soliciting to crime."
Commentary, § 57 at 56. Quoting from a comment to the Model Penal Code, the
Commentary states:

"'A general exhortation to "go out and revolt" does not constitute
solicitation * * *. It is necessary in the context of the background and
position of the intended recipient that the solicitation carry meaning in
terms of proposing some concrete course of conduct that it is the actor's
object to incite.'"

Id. Defendant takes this comment to mean that, in order to avoid constitutional infirmity,
"specific conduct" must mean that the solicitor and the solicitee agree on the details (time,
place, manner) of the conduct that is the subject of the solicitation.

We disagree. Under defendant's interpretation, no solicitation would occur
if a person were to engage a hired killer to murder a named individual but failed to
specify when or where the murder should occur or how the killer should accomplish it. A
more logical (and syntactically coherent) reading is that the level of generality at which
the term "specific" operates is not the time, place, and manner of the conduct, but its
criminality. In other words, the state needs to prove that a defendant has engaged another
person, intending that the other person engage in any specific conduct that constitutes a
crime. The conduct must be specifically criminal (that is, it cannot be "revolt!") but
details of how the crime is to be committed need not be specified.

That reading makes sense of the legislative history, as well. As long as
solicitation applies only to "some [i.e., any] concrete course of conduct that it is the actor's
object to incite," id. (emphasis added), the law will not be applied to a "general
exhortation," id., and will therefore avoid unconstitutionality. Finally, defendant's
interpretation cannot be squared with Krieger, where a juvenile was found to have
committed solicitation merely for asking others to help in "blow[ing] up" or "shoot[ing]
up" the school.

A reasonable finder of fact could find that defendant proposed to
Killingsworth that she engage in the specific criminal conduct of murdering defendant's
wife and daughter. In particular, a factfinder could conclude from the e-mail exchanges
and phone conversations (as credibly related by Killingsworth) that: defendant wanted
his wife dead so he could avoid the financial consequences of a divorce; he wanted his
daughter dead because his sexual involvement with her could "cause trouble"; he thought
Killingsworth was able to do the killing; he made overtures concerning that possibility; he
told Killingsworth that it would be a "bonus" if his daughter were present when his wife
was killed; he described to Killingsworth the house plan (including the location of his
wife's and daughter's bedrooms) and access to the house; he suggested a date for the
killings; he invited Killingsworth to visit the house and finalize the plans; and,
Killingsworth's dealings with defendant led her to conclude that he wanted her to kill
them both. That testimony could permit a finder of fact to understand that defendant
indeed engaged Killingsworth to kill his wife and daughter. The trial court's denial of
defendant's motion for a judgment of acquittal on the charge of solicitation to commit
aggravated murder was not error.

Defendant also assigns error to the trial court's denial of his motion for a
judgment of acquittal on the charges of attempted aggravated murder of his wife and
daughter, ORS 161.405 and ORS 163.095, based on the argument that defendant's
electronic and telephone statements did not constitute a "substantial step" for purposes of
attempt. According to defendant, even if his conduct amounts to criminal solicitation
under ORS 161.435, mere solicitation cannot, as a matter of law, constitute a substantial
step under the attempt statute. Again, we disagree.

ORS 161.405(1) provides:

"(1) A person is guilty of an attempt to commit a crime when the
person intentionally engages in conduct which constitutes a substantial step
toward the commission of the crime."

A "substantial step" is more than mere preparation to commit a crime; it must "(1)
advance the criminal purpose charged and (2) provide some verification of the existence
of that purpose." State v. Walters, 311 Or 80, 85, 804 P2d 1164, cert den, 501 US 1209
(1991).

Defendant's argument that his solicitation cannot form the basis of an
attempt relies heavily on the legislative history of ORS 161.405. In particular, he focuses
on a list of examples of "acts which should not be held insufficient as a matter of law to
constitute a substantial step." Commentary, § 54 at 51. That list includes "[s]oliciting an
innocent agent to engage in conduct constituting an element of the crime." Id.
Defendant, quoting treatises, explains that an "innocent agent" is one who is unaware that
his or her acts are criminal, for example, a person who is engaged to give what he thinks
is medicine to a third person when, in fact, the "medicine" is (and was known by the
solicitor to be) poison. From the existence of that example in the legislative history,
defendant draws the negative inference that, if soliciting an innocent agent can be a
substantial step and thus an attempt, then soliciting any other kind of agent (such as
Killingsworth) cannot.

For a variety of reasons, defendant's argument is not persuasive. First, it is
hard to square with the text of ORS 161.405, which says nothing whatsoever about
agents, innocent or guilty. Second, even if we were to conclude that Oregon's attempt
statute incorporated the list in the Commentary, that fact would not imply what defendant
wants it to. To say that soliciting innocent agents can be a substantial step does not, as a
matter of logic, imply that soliciting guilty ones cannot. Third, the Commentary does not
adopt the list; it includes the list as examples of actions that "could be held to be
substantial" because they are "strongly corroborative" of the actor's criminal intent.
Commentary, § 54 at 51.

In fact, the Commentary's treatment of solicitation and its relation to
attempt is inconclusive. Its treatment of State v. Taylor, 47 Or 455, 84 P 82 (1906),
demonstrates that fact. In Taylor, the defendant solicited a knowing (as opposed to
innocent) agent to commit arson, and the court held that the solicitation amounted to an
attempt. 47 Or at 465. In discussing the case (among others) in the Commentary to what
would become the attempt statute, the commission wrote, "The very few Oregon attempt
cases found [including Taylor] indicate that the language of the draft section both as to
intent and the nature of the act is generally in accord with existing Oregon law."
Commentary, § 54 at 52(emphasis and bracketed terms added). That statement would
indicate that Taylor remains good law even after the adoption of ORS 161.405.

Discussing the draft solicitation statute, however, the commission reported
that Taylor represents a minority view and explained that, under the majority view,
solicitation "does not ordinarily constitute an attempt." Commentary, § 57 at 57
(emphasis added). The commission noted that at the time Taylor was decided, "Oregon
had no general solicitation statute," and "[t]hus, for justice to reach the defendant in the
Taylor case, the general attempt statute was employed." Id. As a consequence, the
commission claimed that Taylor "in effect [made] solicitation the equivalent of a criminal
attempt." Id. However, the commission did not disavow Taylor, nor did it categorically
state that any solicitation constitutes nothing more than "mere preparation." Legislative
history, then, provides defendant with no significant support.

Viewing the evidence in the light most favorable to the state, a reasonable
finder of fact could conclude that defendant's conduct constituted a substantial step
toward commission of the murder of his wife and daughter. As explained above, ample
evidence would permit a finding that defendant solicited Killingsworth to kill his wife
and daughter. That solicitation, it could be concluded, served to advance defendant's
criminal purpose--murdering his wife and daughter. A reasonable finder of fact could
conclude that the same evidence of defendant's conduct verified his criminal purpose: his
statements permit the conclusion that he wanted his wife and daughter dead, he engaged
Killingsworth to kill them, and he advised her on how to do so. A reasonable finder of
fact could find that defendant's solicitation exceeded mere preparation. See Sargent, 110
Or App at 198 ("[I]f a person solicits another to engage in conduct constituting an
element of the crime of delivery * * * the person has taken a substantial step toward
committing the crime of attempted delivery * * *.").

In addition, a finder of fact could conclude that the aggravating factors
under ORS 163.095(1)(b) and (d) were present. Paragraph (1)(b) requires proof that
defendant "solicited another to commit the murder and paid or agreed to pay the person
money or other thing of value for committing the murder." Killingsworth's testimony
concerning defendant's assurance that she would want for nothing if she committed the
crimes and her statement that they arranged payment would permit a finder of fact to
conclude that this factor was present. Paragraph (1)(d) requires proof of "more than one
murder victim in the same criminal episode * * *." Again, evidence that defendant
planned that Killingsworth would have occasion to kill both his wife and daughter
permits a finder of fact to conclude that that factor was present. The trial court's denial of
defendant's motion for a judgment of acquittal on the charges of attempted aggravated
murder was not error.

Affirmed.

1. Defendant pleaded guilty to two counts of abuse, and they are not part of this
appeal. We mention them and his affairs only because they relate to the question of defendant's
motive for the crimes that are at issue.

3. Defendant asserts that the state had to prove solicitation not merely to commit
murder, but to commit murder with aggravating factors. That is because the solicitation counts
on which defendant moved for a judgment of acquittal, counts 5 and 6, both specify that
defendant solicited Killingsworth to engage in acts constituting aggravated murder. Count 5
alleged multiple victims and count 6 alleged murder of defendant's daughter by torture.
Although defendant asserts that the state needed to prove the aggravating factors, his brief
contains no argument that the state failed to do so. In any event, such argument would be of no
avail. As noted, the record contains sufficient evidence of multiple victims; that would defeat
defendant's argument regarding the aggravating factor in count 5. It also contains sufficient
evidence of solicitation to engage in torture; at one point in his e-mail conversation with
Killingsworth, he muses about killing his daughter with "a thousand little cuts."

4. It is true, as defendant notes, that, in Ralston v. OSCI, 92 Or App 513, 517, 759
P2d 298 (1988) (Graber, J., concurring in part and dissenting in part), Judge Graber states that
"[m]ere solicitation," although a "step" in the commission of a crime, is not "substantial" for
purposes of attempt. In addition to the fact that a statement in a concurring and dissenting
opinion has no precedential value, Judge Graber's statement relies on the common law and on
cases decided before the current criminal code was adopted.

5. The majority rule that solicitation generally cannot amount to an attempt was
possibly driven by the concern that the same act could expose a defendant to multiple
prosecutions. Under the current law, however, that concern is addressed by ORS 161.485(2),
which prohibits multiple convictions for inchoate crimes "designed to commit or to culminate in
commission of the same [substantive] crime."